SCOTUS to weigh in on when online rants become criminal threats

The US Supreme Court on Monday announced that it will consider a case involving a thorny free speech issue in the digital age: at what point does a statement made on social media sites like Facebook or Twitter cross the threshold from protected free speech under the First Amendment to a criminally actionable threat?

Further Reading

The case, Elonis v. United States, which we’ve previously covered in some detail, has reached the nation’s high court on appeal, after the Third Circuit Court of Appeals found that defendant Anthony Elonis’ 2010 Facebook rants mentioning attacks on an elementary school, his estranged wife, and even law enforcement, constituted a “true threat” under First Amendment precedent. As such, the court upheld Elonis’ sentence and conviction.

In his petition to the Supreme Court, Elonis' counsel said the issue boils down to "whether a person can be convicted of the felony 'speech crime' of making a threat only if he subjectively intended to threaten another person or whether instead he can be convicted if he negligently misjudges how his words will be construed and a 'reasonable person' would deem them a threat."

For example, in one such Facebook posting, about which Elonis has since argued that he lacked criminal intent, he wrote: “Do you know that it’s illegal for me to say I want to kill my wife? It’s illegal. It’s indirect criminal contempt. It’s one of the only sentences that I’m not allowed to say.”

While the Supreme Court ponders the difficult question of how the law should deal with online speech subject to multiple interpretations, perhaps it could take a page out of the US Secret Service’s playbook. Earlier this month, the Secret Service posted a work order seeking the development of social media analytics software capable of detecting sarcasm online, with the hopes that, as The Consumerist argued, “someone would explain the Internet so it doesn’t go around arresting sarcastic people with itchy social media trigger fingers.”